As previously discussed in our article Defamation Law in Australia, a plaintiff commencing a defamation claim in Australia must establish four essential elements. One of the most critical—and usually the first to consider—is publication.

In defamation law, publication refers to the communication of defamatory material to someone other than the person it is about. This article explores in detail how publication is defined, how it occurs, and what evidence is needed to prove it in different contexts, including oral defamation, written defamation, and other less common forms.

What Is Publication in Defamation Law?

In all Australian jurisdictions, for a statement to be considered defamatory, it must be published to a third party. This is a fundamental element of the tort of defamation and must be proven for a claim to succeed.

Put simply, a defamatory statement must be seen, heard, or otherwise received by someone other than the plaintiff. The courts require evidence that a third party had access to and comprehended the defamatory matter in question.

Although publication is generally considered the most straightforward element to prove, there are scenarios where it becomes complex—particularly when the publication is alleged to have occurred in private conversations or through limited circulation.

Establishing Publication: Types of Defamation and Required Evidence

The type of evidence needed to prove publication depends heavily on the form of the defamatory matter. Below, we examine common categories: oral defamation, written defamation, and other forms.

Oral Defamation

Oral defamation, often referred to as slander, involves spoken words. This is typically the most challenging type of defamation to prove due to several practical and legal hurdles:

• Most defamatory conversations are not recorded.
• Even when recorded, such recordings are often inadmissible in court. For example, under section 6 of the Surveillance Devices Act 1999 (Vic), recording a private conversation without consent may be illegal, and therefore, inadmissible.
• Human memory is fallible, especially with time—witnesses may forget details or misremember exactly what was said or when it was said.

To prove oral publication, a claimant must rely on third-party witnesses who heard the defamatory statement being made. These individuals must be willing to provide a written statement and, ideally, give evidence in court or be available for subpoena.

Written Defamation

The majority of defamation claims in Australia involve written statements—also known as libel. Written defamation is easier to prove than oral defamation because there is typically a tangible record of the defamatory content.

In modern contexts, written defamation often appears on:

• Social media platforms like Facebook, Instagram, Twitter, and WhatsApp
• Emails and text messages
• Blogs, forums, and websites
• Printed materials, including newspapers and magazines

Importantly, for publication to be valid, at least one recipient must be capable of understanding the language in which the content is published. For instance, if defamatory content is published in Indonesian, and none of the recipients understands Indonesian, then no publication has occurred. However, if even one recipient can comprehend it and did comprehend it, that satisfies the requirement.

In high-profile cases, such as those involving media outlets, publication typically includes broadcast via television, radio, or digital news platforms. Sometimes, publication can be presumed or is otherwise not in dispute. This is usually the case involving mass media publications via television or radio.

Other Forms of Defamatory Publication

Less common but recognised forms of defamatory publication include:

• Theatrical performances or plays
• Artworks or visual representations
• Cartoons or illustrations

These mediums are rarely the subject of defamation claims because they are often viewed as subjective or artistic interpretations, which may not carry a specific, defamatory meaning in the same way that precise words do.

Nonetheless, they can still constitute defamation if the material clearly implies a defamatory imputation and is understood as such by a third party.

How Allen Law Can Help

At Allen Law, we specialise in defamation law across Australia, including cases involving complex questions of publication. If you believe you have been defamed, or if you have received a concerns notice or are defending a defamation claim, it is critical to obtain legal advice without delay.

We will help you:

• Determine whether publication has occurred
• Identify and secure witnesses or documentary evidence
• Comply with procedural requirements
• Prepare and present your case, whether you’re the plaintiff or the defendant

Our legal team has experience dealing with both everyday defamation (e.g., on social media) and large-scale, high-profile media litigation.

Contact Allen Law

📞 Phone: (03) 7020 6563
📧 Email: lee@allenlawyers.com.au
🌐 Website: www.allenlawyers.com.au

Speak to a defamation lawyer at Allen Law today for practical, fast, and strategic legal advice.